Tuesday, July 31, 2007


"Memo to Schmulevich: Next time, Buy your own copy of the Koran. Put it in a frame and cover it with elephant dung. Exhibit in trendy museum. Become the toast of New York."

Burning Cross
Eugene Volokh takes a stab at examining the principal of hate as a motivation bringing greater punishment for other crimes. He gives five examples to explain this:
  1. A man, angry at a Muslim, steals a book from the library, throws it in a toilet, and dumps feces on it.
  2. A man, angry at the United States, burns the flag flying out front of a government building.
  3. An artist, angry at the Christian church and deeds in the past it was responsible for, creates a cross and covers it with feces in a public housing project, refusing to leave when ordered.
  4. A minister, angry at the Episcopal church's decision to admit gay ministers enters the home of an Episcopal Bishop and refuses to leave when asked to
  5. A state decides that any crime undertaken with hate or perceived hate as the motivation is upgraded to a more serious crime with a greater penalty.
Now, each of these examples has a crime, a motivation that can be interpreted as "hate," and a proposed higher penalty than usual because of the motivation. In other words, because the motivation of the criminal is believed to be hateful, the ordinary crime (theft, tresspassing, etc) is punished more severely than usual. Of the examples given, the first is real, it happened, and the man is being prosecuted not simply for theft and destruction of private property, but a hate crime for his treatment of the Koran. In essence, he's being charged with blasphemy. Eugene Volkh analyzes this development:
It seems to me that this sort of use of the hate crime statutes is at least very dangerous to free speech, and may well be unconstitutional. Unfortunately, people sometimes act in illegal — often mildly illegal — ways when engaged in protest. It's right to punish them for such actions. But it seems to me that they shouldn't be punished more (potentially much more, as when a misdemeanor is turned into a felony) because they were motivated by disapproval of a religion, a religious practice, a sexual orientation, and the like, or were motivated by a desire to offend people based on these criteria.

Such additional punishment is not, it seems to me, primarily punishment for the crime (since that would have been covered by the unenhanced punishment), or even for the discriminatory selection of a crime's target. Rather, it is punishment for the ideology that motivated the crime. And it will deter even speakers who have that ideology but have no plans to commit any crimes: Even such speakers may face substantial extra punishment if they recklessly — or, if the law is broadened, even grossly negligently — damage some property in the course of their speech (see example 2 above, though you can similarly adapt the other examples), refuse in the heat of the moment to comply with a command to leave property (see examples 3 and 4), or do something that may be misinterpreted as intentional misconduct.
I can't help but agree: he's being charged with having the wrong ideology, not with a greater criminal act. Commenters discussed this:
The point of most hate crime laws is the moral superiority and power it enables one class of people to lord over others. It doesn't especially matter what the details are; as long as the promulgators can make a show of their superior virtue, the laws are just fine as far as they're concerned, so why change them?
-by ras

It seems to me that if the additional element of hate raises the level of a crime from a misdemeanor to a felony, it raises Blakely issues: the penality which can be imposed is increased beyond that which is permitted by the law applicable to the crime committed. But, using the Blakely analysis, this suggests that what is charged is effectively a wholly new crime, e.g., assault with intent to hate, and with respect to that new crime, hate is an essential element. If that is so, then it would seem the law in question raises first amendment concerns.
-by JohnEMack

There's no way around the irrationality of hate crime laws. All the state is doing is tacking on extra punishment for thought crimes. And do we really want the government to define something as abstract as a hate crime? Please. Just punish them for violating someone else's life and/or property.
-by somebody

Surely you could envision a circumstance (like the first one) where the crime committed on the books looks less culpable than the crime actually committed, and thus is worthy of more punishment. The mere destruction of a random book is bad, but not quite as a bad as targeting a Muslim holy book in a way that seems to convey threat or aggression towards Muslims. That is, the person who destroys a book with this in mind is perhaps more culpable, i.e., more wicked, than the average book destroy. While First Amendment concerns are certainly valid here, as they are everywhere, you would agree that there is some speech that is low in value such that it does not receive protection. I posit that speech that comes from the commission of a crime (a crime that is content-neutral and wholly unrelated to speech suppression) is of little value.

Wait, would a content-based, but viewpoint neutral, ban on destroying all reglious texts be constitutional or would the First Amendment have a problem with that? Because if so, then I might have to rethink my post.
-by Jay Atkins

Isn't there an argument (long shot, maybe) that the 14th Amendment which guarantees us "equal protection" under the law modifies the First Amendment (having come after) and allows for infringing on speech when connected with criminal conduct in order to "protect" people on the basis of protected classes?

Moreover, I don't think EV is fairly characterizing hate crimes...they are not crimes accidentally committed while engaging in protest. They usually have nothing to do with protest. They are crimes fueled by hatred for a certain class. Does not this hatred show an increased mens rea? Is not a book damager with hate in his heart more culpable than the book damager who is stealing the Qur'an for a essay he is writing?
-by Paulie

If I were a Supreme Court justice, I would draw the hate crimes / free speech line as follows:

If the crime component and the speech component are inseparable, then the speech is unprotected and the crime can be considered a hate crime. For example, you can't beat a black man in order to make a point.

If the crime component is merely incidental to the speech component, and not integral to it, then the speech is protected and cannot justify a harsher prosecution. Putting Korans in toilets and pooping on them isn't inherently illegal; the fact that it's a stolen Koran isn't an aspect of the point being made by the act.

Like all lines, especially speech lines, it's not exact. But I think it preserves the ability to take motive into account when it's relevant, while minimally chilling speech. It should be pretty obvious to people whether the speech itself is inherently illegal.
-by randal

randal: I don't know if that answers EV, because "beating a black man to make a point" would be punished (no one is arguing that). The question is does it deserving of MORE punishment simply because it was trying to make the point. That is, is the addition of a message (i.e., speech) render the crime more culpable. EV doesn't think so.
-by Paulie

It's as logical as commerce clause jurisdiction. As long as there is a nexus to something the state can legitimate punish, it seems like it's open season.

As long as have church-arson and domestic violence cases where the prosecution has to prove that that the church sold goods that crossed state lines (or the guy beat his wife with a stick that crossed state lines) because, technically, it's a commerce statute and the federal government cannot directly prohibit church burning or personal violence.

If we're willing to treat powers expansively and limits this narrowly, it would seem a very logical step to have blasphemy cases where the government similarly has to prove some technicality that puts the case in its jurisdiction, but everyone understands that it's a technicallity, one that every now and then causes the government to lose a case, but doesn't result in anyone taking the idea that the government can't prohibit the conduct directly very seriously or as something other than a minor annoyance.

What's the difference?
-by ReaderY

Thorley sez: 'if the offender was a student, expel him'
Let's say the 'offender' did hate Muslims, but instead of a book in a toilet, he let out his feelings by presenting a paper in a class (in, say, comparative religion, international relations or sensitivity training) in which he alleged that Mohammad was a child molester (correctly sourced to the writings of a mainstream scholar, eg, Ibn Warriq).

I predict that Muslim students would be equally offended. Would that be a hate crime? If not, should be be expelled because some students were upset?
-by Harry Eagar

I really do not quite understand the point of your argument, given that you are using the New York hate crime law as the basis for promoting your belief that the federal hate crime law under consideration by the Senate would be rejected. True, the New York law (unlike the proposed federal law) includes crimes against the destruction of property, but if you actually bothered to read the New York law, it becomes apparent that Shmulevich has relatively little to worry about with regard to the hate crimes law. Why? Because the law requires that the defendant intentionally select an individual (person) with respect to commission of the crime; in fact, it is quite clear that for a hate crime to have occurred it must be the victim's property that is attacked and destroyed (or otherwise harmed). Stealing a book from Pace University is not a crime against a person. In fact, in precisely ZERO of your proposed slippery slope examples do you refer to a single instance in which an individual person has been targeted.

It is quite easy to refer to extreme instances of what could be questionably unconstitutional conduct that may inhibit free speech, yet you have given no definite example above in which the law has been violated. Any decent lawyer could get these charges thrown out with ease. Furthermore, you seem to disregard the nature of a hate crime, in that the object of the crime is not solely and specifically harm upon the victim, but to silence the victim for his/her membership in an unpopular class. In fact, there is a strong basis for arguing that the recognition of hate crime statutes is due to the act of violating the victim's free speech rights, namely, the right to identify with a particular group or class of individuals.

For example, let me come up with an "example" where, for instance, a couple of guys go to a gay bar with the intent to "send a message" to the "queers" in the community that their kind is "not welcome." They pick their victim, who is playing pool at the bar, ask him to come home with them, and later proceed to slash his throat, bludgeon his body with an ax handle, set him on top of a pile of tires, and then light his corpse on fire. Well, that "scenario" actually happened to Billy Jack Gaither of Sylacauga, Alabama.

The purpose of the hate crime is not only to attack the victim, but to intimidate everyone else, who like the victim, is a member of an unpopular group. The hate crime is not only meant to silence the victim, but to silence the group and to rob them of their identity. It is meant to make them live their lives in fear and to "know their place" by using the victim as the example of what could and will happen to them. So please, do not preach to me about some random instance where an individual has been charged with a hate crime, prior to trial, where that charge will likely get thrown out. Please tell me you have something more substantial than your perceived slippery slope argument of impending doom.
-by Michaelw552

552: You say that hate crimes intimidate and "silence the victim" and the group. To make sure the victim knows their place by using the victim as an example of what could happen to you.

Isn't this exactly what's happening by prosecuting Schmulevich? The Muslims were obviously not intimidated, but anyone else contemplating a protest of the Koran will be.

By turning a misdemeanor into a felony based on what was in Schmulevich's mind, the state is prosecuting his non-state-sanctioned thoughts. In this '1984' world, all thoughts are equal but some thoughts are more equal than others. (To paraphrase another Orwell classic).
-by calmom
Hate Crime Law MapThe origin of "hate crimes" legislation seems to trace back to cross burning Klansmen in the past. In an effort to find a way to punish these people and prevent their activities, legislators came up with laws that made it criminal to do certain acts which were in themselves not illegal if those acts were motivated by racial hatred or an intent to intimidate.

Here's the critical thing: the mere act of burning two pieces of wood you own in the shape of a lower-case "t" on your property is not intimidating in and of its self. The reason it becomes intimidating is because of the KKK's intents, public stances, and clear actions in the past. The burning cross became a symbol of this evil, a very public and frightening demonstration of this malice and hatred. Let me illustrate this with an event in the 1980's in Portland, Oregon.

A black family reported that a cross was burning in their yard, and told the media who showed up rapidly that they thought they saw policemen set it up. The news was on fire with this story, but it turned out that the family its self set up the cross, and were caught putting up another one to get more attention. What was initially perceived as quite intimidating and frightening became merely pathetic and reprehensible as an attention-gathering and police-bashing stunt. It wasn't the burning wood that was at issue here, it was the intent behind it.

So we have the basis of hate crimes legislation: to criminalize and punish intent and motivation. Instead of the crime being something that has actually taken place, an act that can be proven and documented, we have a crime against something that takes place in the minds and souls of the persons involved.

In the case of the defaced Koran, we have a group of people who are offended and outraged by the incident - Muslims - but no one who has been intimidated or frightened by it. So the line is pushed further, as the young man who did this act is being charged with having carried out a hate crime.

This brings up some basic problems with hate crimes as a concept. The reasons hate crimes laws are so problematic are multiple, and troubling for the future of law and culture:

1) Can we trust the judgment of lawmakers in such subjective areas?

In other words, deciding what is a hate crime is a nebulous thing, it is difficult to define, and almost inevitably will result in an ever-expanding definition, based not on absolute standards of legal definition, but on the perceptions of culture. Here's what I mean, from a comment on Eugene Volokh's blog:
Prof. Volokh may find these scenarios hard to distinguish, but surely the average university administrator, at UCLA or elsewhere, doesn't find these sorts of cases hard to distinguish. If someone is insulting Christianity, it isn't a crime at all, because Christianity is oppressive. If someone is insulting Judaism, it's best not to make a fuss. If someone is insulting Islam, that's a crime, because Muslims are victims of the Bush administration and of white males generally. This seems to me like a perfectly usable set of "neutral principles," and I think Prof. Volokh is being a little disingenuous in suggesting that these cases are difficult. The principles I have sketched render the behavior of university administrators entirely predictable, which is the goal of social science, no?
-by wm13
For the relativist and multiculturalist, what is hate crime and what is not is based on power struggles and perceptions of oppression and the oppressed. For the Muslim, this will be a strict observance of Sharia law. For each distinct group, they will choose what they interpret human thought and motivation based upon in a completely subjective manner - it's little more than guesswork which might have decent evidence, but is still outside the capacity of human measurement.

2) Is the motivation, the ideology of a person comitting a crime sufficient cause for greater punishment?

Even presuming we can manage to understand and know with any degree of certainty what someone was motivated by and intended, is that a proper legal reason for punishment, or for increasing the severity of a crime?

We have a principle in law where people who commit crimes with previous, calculated intent is worse than a crime committed in the heat of passion. Killing someone in a rage because you caught them in bed with your spouse is different than buying a life insurance plan then poisoning someone over six months to collect on the money. This indicates that there is at least a principle in jurisprudence that one's motivation can impact punishment and degree of crime.

The difference is this is done not because of an attempt to criminalize a certain point of view or intent, however. Hate for your spouse or greed is not what is being punished or examined here. The punishment should be viewed as lesser for a crime of passion, not greater for a crime of intent - a murderer who kills in a sudden, justified rage (the rage, not the deed is justified) is less a threat to society and less culpable than someone who kills out of deliberate planning and intent.

So the principle that we punish people for their intent and ideas is not an extant legal principle to build upon. This is an entirely new idea, more akin to the "thought crimes" of George Orwell's 1984. Is it proper for judges and lawmakers to, even assuming they can properly and reliably define and determine such, punish people more severely based on their intent?

3) is the damage to society that hate toward certain groups causes sufficient to justify greater punishment?

Instead of a principle of law where we decide something is illegal because it violates an absolute, objective standard of ethical behavior, modern law is based on two concepts: precedent and damage to society. Precedent is the weight of law over the years, decisions built on decisions which influence later ones. When a judge rules on a certain kind of case, this goes into the body of law and is considered later on by other judges when a similar case comes up. Societal damage is the principle that certain actions have an impact beyond simply the individuals directly involved, that it damages society and the state, that it harms everyone instead of just the victim. When you do something that is racially hateful, all people of that ethnic group are affected to some degree, as is society as a whole by your actions, so the theory goes.

Without an absolute standard of law to anchor it to, the law shifts and moves like a liquid, directed only by the channels and gravity of cultural trends and previous decisions. Putting aside whether this is a better or worse way to consider law, is the societal damage done by hate crimes sufficient to justify greater punishment of the criminal? Can we determine the damage done to all members of a group that was hated to a legal degree sufficient to codify this into law? Ought we do so, or is this legal principle one that is flawed or improper?

4) Is it the jurisdiction or duty of government to prevent intimidation of other peoples, and if so, to what degree?

The final problem hate crimes brings up is the most critical. Is it the duty of the state to protect people from intimidation, offense, or discomfort? Each of these is real, each of these is something people would prefer not to experience, but are any of them proper areas of power and action by the government?

In other words, is it any business of the government whether or not I feel intimidated or threatened, and if so, how great or reasonable does this have to be before it is the government's business? If I go into an interview, I'm intimidated by the interviewer - particularly if they have a board of people who all work you at once. That's undeniably uncomfortable, but clearly not so much so that legal action ought to be taken. If I walk down an ally and see six guys in matching outfits with tattoos all over them walking toward me, I tend to be intimidated. Is that something the police ought to stop? Where's the line, if any?

It is illegal to make threats against someone's life or person, but only if these threats are reasonable and actually threatening. If I call you up and threaten to rip your extra arms off, or beat your wings to tatters, that's not particularly threatening - as far as I know no one reading this blog has either wings or spare arms. If I threaten to blow up your car with a bomb, that's a bit more plausible, if a bit improbable, and could possibly result in criminal action. If I pick you up off the ground and threaten to use a tire iron to cave in your skull while waving it around, then you've got a definite criminal case.

Is the mere act of burning a cross sufficiently intimidating and threatening to be properly considered a criminal act? How about flushing a copy of the Koran?

Unless these and other questions can be answered, the government has no business implementing laws or policy no matter how well-meaning they are. We cannot responsibly and properly create law or policy without first thinking through these ideas and what they mean or are for. Without examining and considering these issues more carefully, we ought not take action because law, once in place, is very difficult to remove and can have long term consequences we've not considered or cannot know.

I apologize for the length of this article, it might end up the basis of an essay one day, but the points brought up by the commenters and Eugene Volokh helped solidify various thoughts and concerns I've had about Hate Crimes bills for quite some time.
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1 comment:

Anna Venger said...

I too have issues with "hate" crimes. No one should be intimidated or mistreated for any reason, but I worry about how such laws will be applied. Why isn't it a hate crime to smear pictures of the Virgin Mary with elephant dung or to submerge a cross in urine but it is a crime to dump a Koran in the toilet?